Regarding Rick Hasen’s Post

February 25th, 2016

In a post today, Rick Hasen writes:

And then there is the Wall Street Journal oped by Josh Blackman and Ilya Shapiro, conveniently saying that it is no big deal that there will be some 4-4 splits on the Supreme Court. So what if the contraceptive mandate is constitutional in some parts of the United States but not in others? So what if the Court cannot decide major questions about the legality of closing most abortion clinics in a state, the President’s power over immigration, and the permissibility of Environmental Protection Agency regulations to combat climate change?

I was taken aback by the use of the word “conveniently,” as if our argument was made out of bad faith. We acknowledge this is a “tough” situation for the Court, but one it has faced before. This piece was purely historical.
Rick also criticized us for not addressing the status of pending cases that may break 4-4. Our initial draft to the WSJ did address pending cases, but they cut it down for word limits. I trust everyone understands how that works.
In any event, in a blog post I authored the day after Justice Scalia passed away, I spent several hundred words addressing how Justice Scalia’s absence would affect this term, including the massive circuit split for the contraceptive mandate case. Howard Bashman linked to it, so it made the rounds.
I asked Rick to post an update to his post reflecting the fact that I addressed elsewhere the very issue he said we did not address in the WSJ.
Update: Rick added an update to his post:

[Update: Josh Blackman responds here as to the part of my post addressing him and his co-authored article entitled “Only Eight Justices? So What.” He points to another post of his on the expected 4-4 splits this term.]

I note that Ilya and I did not pick the title of the article.